Constitutionalism à la rwandaise

In this chapter, I analyse the Constitution of Rwanda, a small African country that experienced a devastating genocide in 1994. For the theoretical underpinning of my analysis I use illiberal state building, a concept that is explained in the first paragraph. Next, I will describe the political history of Rwanda, its constitutions and the differences they did (not) make until 1994. I continue with a brief description of the situation after the end of the genocide until 4 June 2003, the date that Rwanda's ‘home-grown’ Constitution came into force. In the third part of this paper, I start with some salient provisions and analyse and criticize the Constitution, which was amended by the end of 2015. After this, I will give an overview of the main external criticism, i.e. from the international community and from academics. I continue with an appraisal of the illiberal state building project that is going on in Rwanda, including the country's relationship with the rest of the world. Finally, I suggest how a legal complex approach could bridge the gap between the paper ideals in the Rwandan Constitution and their incomplete realization. Liberal, Postliberal and Illiberal State-Building The international debates about constitutionalism have been dominated for a long time by the ideals of the American liberal legal tradition as a victory over dictatorship. According to Mark Tushnet, ‘[l]egal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject’. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unrestrained power-holders’. I will show that this dichotomy is too simple for a good understanding of Rwanda. For a long time the American constitutional debates were of a liberal (in the sense of ‘progressive’) character. Most scholars argued that the US Constitution is a living document that must be interpreted in the context of the needs of modern society. In the 1960s and 1970s the Warren Court delivered many progressive decisions in the area of civil rights and defendants’ rights.

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